Buffalo Law Review Volume 64 Number 2 Article 4 4-1-2016 Valuing our Discordant Constitutional Discourse: Autonomous- Text Constitutionalism and the Jewish Legal Tradition Shlomo C. Pill Center for the Study of Law and Religion, Emory Law School (Student) Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Constitutional Law Commons, and the Religion Law Commons Recommended Citation Shlomo C. Pill, Valuing our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism and the Jewish Legal Tradition, 64 Buff. L. Rev. 349 (2016). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol64/iss2/4 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. Valuing our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism and the Jewish Legal Tradition SHLOMO C. PILL† INTRODUCTION Constitutional interpretation is a central concern of the American legal system. American law is, at its core, constitutional law, and the meaning of the United States Constitution bears in some way on virtually every legal issue, substantive and procedural. But understanding the Constitution is not easy; for a number of reasons—the centrality of the Constitution as the sacred-text of our civil religion, the Constitution’s often vague and ambiguous language, the contradictory enforcement of a democratic constitution through the undemocratic process of judicial review—deciding what the text means and how we ought to determine what the text means constitute one of the most contentious spheres of American public life.1 American constitutionalism prides itself as being the enlightened rule of law, the primacy of right reason over selfish will,2 but the increasingly caustic tone of our constitutional disagreement threatens to collapse the distinction, making ours a rule of men. This devolution of legal argument into political disagreement finds potent expression in the debate over interpretive theory, over the how of constitutional † S.J.D. candidate in Law and Religion, 2016, Center for the Study of Law and Religion, Emory Law School; L.L.M., 2013, Center for the Study of Law and Religion, Emory Law School; J.D., 2012, Fordham University School of Law; B.A., 2009, Political Science and History, Lander College for Men. 1. See Hillary Salans, More Harm than Good?, 38 HASTINGS L.J. 1023, 1035 (1987) (book review) (“The debate over constitutional interpretation becomes more heated when one asks how the Supreme Court should interpret the vague meaning of the Constitution’s text.”). 2. See PAUL W. KAHN, THE CULTURAL STUDY OF LAW: RECONSTRUCTING LEGAL SCHOLARSHIP 7-30 (1999). 349 350 BUFFALO LAW REVIEW [Vol. 64 interpretation. Disagreements about the proper way to interpret the Constitution are driven in part by interpretive theorists’ varied perspectives on how best to resolve some of the central problems of American constitutional theory, which manifest particularly in the interpretive context.3 Competing visions of how to deal with the dead hand problem, the counter-majoritarian difficulty, and the competing needs for pragmatism and continuity translate into a fierce debate over proper methods of interpretation with each side accusing the other of subjectivity, judicial activism, and making rather than applying the law. Autonomous-textualism, an interpretive theory inspired by Hans-Georg Gadamer’s philosophical hermeneutics, holds the promise of elevating our constitutional debate above the partisan political fray. This theory posits that textual truth is pluralistic, and that the meaning of the Constitution lies in the epistemological product of an interpretive dialectic between the constitutional text and each individual reader.4 While the idea of interpretive pluralism bears the foreboding tidings of constitutional anarchy, Jewish law’s three- thousand year old constitutional tradition offers a powerful model for how autonomous-textualism might work in practice. Interpretation in Jewish law closely resembles the Gadamerian model, and has been used to successfully apply Jewish law across time and space in a pragmatic way that preserves the historical continuity of the Jewish legal tradition.5 Relying on interpretive pluralism, Jewish law has dealt effectively with the constitutional dilemmas that drive America’s harsh interpretive debate, and thus offers a way of elevating our discordant constitutional discourse by embracing autonomous-textualism’s epistemologically pluralistic vision.6 Part I of this Article begins by discussing three principle approaches common to contemporary American interpretive theory, and then explains the autonomous-textualism 3. See infra Part III. 4. See infra Part I.B. 5. See infra Part II; cf. AARON M. SCHREIBER, JEWISH LAW AND DECISION- MAKING: A STUDY THROUGH TIME 7 (1979). 6. See infra Part III. 2016] JEWISH LEGAL TRADITION 351 alternative inspired by Gadamer’s hermeneutical work. Part II turns to legal interpretation in the Jewish legal tradition, first explaining the constitutional foundations of the Jewish legal system, next exploring the autonomous-text in Jewish law interpretive theory, and finally discussing how Jewish law deals with interpretive pluralism in legal practice. Part III concludes by briefly discussing how Jewish law addresses some of the central problems of constitutionalism that animate the contemporary debate over interpretation, and by suggesting how Jewish law’s resolutions for these problems might make autonomous-textualism a desirable interpretive paradigm for American constitutional discourse. I. CONSTITUTIONAL INTERPRETATION, HERMENEUTICS, AND THE AUTONOMOUS TEXT Hermeneutics generally, and textual hermeneutics in particular, is concerned with providing an account of the relationship between a standardized object and a shifting context.7 Scholars consider the nature of this object-subject relationship and the manner in which factors like authorial intent, the objectivity of language, historical context, and interpretive subjectivity relate to the structuring of this relationship in the quest for textual understanding. As applied to constitutional jurisprudence, the hermeneutics of legal interpretation works to explain the relationship between the text of the Constitution and the circumstances under which constitutional interpretation takes place. Thus, constitutional hermeneutics focuses on relations between a fixed constitutional text and the interpretive application of that text to a particular factual circumstance, the case.8 Scholars of constitutional interpretation thus consider how various hermeneutical, jurisprudential, and political values—language, intent, precedent, judiciousness, majoritiarianism, and rights, to name a few—factor into the hermeneutical equation, the constitutional interpretive enterprise. 7. See Paul Campos, That Obscure Object of Desire: Hermeneutics and the Autonomous Legal Text, 77 MINN. L. REV. 1065, 1068-69 (1993). 8. See id. at 1068-69. 352 BUFFALO LAW REVIEW [Vol. 64 This Part explores the field of contemporary constitutional hermeneutics. Part I.A briefly reviews the principle hermeneutical typologies—textualism, historicism, and pragmatism—that have come to dominate the interpretive field. Part I.B turns to explicate an alternative interpretive paradigm—autonomous-textualism—that derives from Hans-Georg Gadamer’s innovative philosophical hermeneutics. A. The Interpretive Orthodoxy This Section briefly summarizes the goals, justifications, and principle critiques of the three dominant theories of constitutional interpretation. Part I.A.1 discusses textualism, which maintains that legal texts ought to be interpreted and given meaning in light of the plain meaning of their language gleaned through the use of dictionary definitions, rules of grammar and syntax, and accepted canons of legal interpretations. Part I.A.2 turns to historicism, which sites the meaning of legal texts in some point in time, usually the time of a law’s enactment. Historical interpreters may look variously at the “original intent” or “original meaning” of a law, and understand textual meaning to lie in some sense with the intentions of those who brought a particular text into being. Finally, Part I.A.3 examines pragmatic interpretation, which contends that the meaning of a legal text, a statute or a constitution, should be determined in light of any number of contemporary policy objectives, whether economic utility, racial equality, or majoritarian decision-making. 1. Textualism Textualist theories of interpretation claim normative support in several general concepts of legal and political theory. Textualists contend that laws must be interpreted and understood in terms of their plain textual meaning because only the text of the law—and its apparent linguistic meaning—were enacted into law by a legislating authority.9 9. See James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 VA. L. REV. 1523, 1539 (2011). 2016] JEWISH LEGAL TRADITION 353 As Justice Scalia points out, “[t]he text is the law, and it is the text that must be observed.”10 On this view, textualism is required as a function of the law’s democratic legitimacy. If laws are normatively binding because they embody the majoritarian decisions